Citation Nr: 1817663 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-28 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension, to include a heart disability. 2. Entitlement to service connection for hypercholesterolemia. REPRESENTATION Veteran represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969, with service in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2005 and September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska; the case is now before the Chicago, Illinois RO. To provide the Veteran the broadest and most sympathetic review, the Board has recharacterized the claim for hypertension to include a heart disability, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (Board must consider any disability that "may reasonably be encompassed by" a description of the claim, symptoms reported, and other evidence). The RO denied the Veteran's hypertension claim in June 2005. The Veteran submitted a private nexus opinion in July 2005. A statement of the case (SOC) was issued by the Agency of Original Jurisdiction (AOJ) in June 2014 and the 2005 rating decision is still pending on appeal before the Board. The issues of entitlement to service connection for hypertension (to include a heart disability) and hypercholesterolemia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran is seeking service connection for hypertension, to include a heart disability. The Veteran submitted a private opinion from T.C. in July 2005 which stated that the Veteran's hypertension and service-connected diabetes lead to his cardiac conduction damage and heart block. However, T.C. did not provide a explanation for this opinion and, therefore, the opinion does not provide the Board with the information needed to adjudicate the claim. The Veteran was also afforded a VA examination pursuant to Nehmer in February 2011. The examiner concluded that the Veteran did not have ischemic heart disease and was therefore not eligible for presumptive service connection. However, other theories of entitlement should also be considered. This claim must be remanded for a new VA examination to consider direct and secondary service connection. In addition, the Veteran's April 2012 notice of disagreement (NOD) appealed a denial of hypercholesterolemia. However, for some reason, the June 2014 statement of the case (SOC) did not include this issue. There is no evidence that the appeal has been withdrawn and, therefore, corrective action is needed and the AOJ must issue an SOC addressing this claim. Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination for his heart condition. The examiner is asked to respond to the following: A) The examiner should identify all heart conditions and whether any identified heart condition qualifies as ischemic heart disease within the generally accepted medical definition of ischemic heart disease. B) IF IT IS DETERMINED that the Veteran does not have a heart disability that medically qualifies as ischemic heart disease, then is it at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disability began in service or is related to any incident in service, to include exposure to herbicide agents? The Veteran's exposure to herbicide agents is presumed since he served in Vietnam during the Vietnam era. The examiner must provide a detailed explanation of the medical opinion provided, but cannot base the opinion solely on the fact that VA does not recognize a presumptive relationship between the Veteran's specific condition and past exposure to herbicide agents. Thus, the opinion and associated rationale needs to address the likelihood that THIS Veteran's heart disability was related to herbicide agent exposure given his individual medical history, family history, risk factors, etc. C) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disability is causally related to his service-connected diabetes? D) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disability was AGGRAVATED beyond the normal course of the condition by his service-connected diabetes? (Aggravation means any increase in severity beyond natural progression of the disability) A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). 2. The AOJ should issue an appropriate statement of the case (SOC) addressing the Veteran's April 2012 notice of disagreement appealing the denial of service connection for hypercholesterolemia. The Veteran and his representative should be afforded an opportunity to respond and, if a timely substantive appeal is filed, the matter should be returned to the Board for appellate consideration. 3. After completing the above actions and any other development as may be indicated, the AOJ must readjudicate the Veteran's claim on appeal in light of all the evidence of record. If the benefits on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs